NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 159807
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 12, 2016
August 3, 2016
August 15, 2016
September 9, 2016
October 14, 2016
November 23, 2016
December 9, 2016
January 23, 2017
Actual Record Closed Date: February 23, 2017
Hearing Officer: Sharyn Finkelstein, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 12, 2016
FOR THE STUDENT
Parent
FOR THE DEPARTMENT
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2016
FOR THE STUDENT
Attorney
Attorney
Parent
FOR THE DEPARTMENT
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 15, 2016
FOR THE DEPARTMENT
Attorney
FOR THE PARENT
Attorney
Attorney
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2016
FOR THE STUDENT
Attorney
Attorney
Parent
FOR THE DEPARTMENT
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2016
FOR THE STUDENT
Attorney
Attorney
Parent
FOR THE DEPARTMENT OF EDUCATION
District Representative
Observing
(via telephone)
(via telephone)
(via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 23, 2016
FOR THE DEPARTMENT
District Representative
FOR THE STUDENT
Attorney
Attorney
Parent
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 9, 2016
FOR THE STUDENT
Attorney
Attorney
Parent
(via telephone)
(via telephone)
FOR THE DEPARTMENT
District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 23, 2017 1
FOR THE DEPARTMENT
District Representative
1 We were unable to complete the hearing on December 9, 2016 as had been contemplated because Parent had a problem securing 's presence.
FOR THE STUDENT
Attorney
Mother
(via telephone)
INTRODUCTION
I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §1415(f)(3) concerning the special education of (hereinafter referred to as “ ” or “Student”) for the 2014-15, 2015- 2016 and 2016-17 school years.
The parent was represented by their attorneys Ms. and Ms. from the .[2] The Department of Education (DOE) was represented by Ms.
. I held a pre hearing conference after the end of the resolution session. The parents amended their request (Exhibit A) and I held another pre hearing conference after the end of the resolution session. The parent made a motion requesting independent evaluations and I issued an interim order. (IHO Exhibit I) Evaluations were conducted by the Department including a evaluation, a evaluation, a evaluation and evaluation. (Exhibits
NNN, JJJ, III, HHH, GGG) ) Hearings began on August 3, 2016 and concluded on January 23, 2017.
The parties moved to extend the compliance date on various occasions in light of witness availability and for purposes of submitting written closing statements. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to explore their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the joint request for extension of the compliance dates were granted. (IHO Exhibit II ) The parties submitted written closings on February 23, 2017 and the record was closed.[4] (Exhibit PPP and Exhibit 35)
Attached to the decisions are lists of persons who attended on the various hearing dates and evidence that was submitted into the record.
BACKGROUND
is presently a student who attends a program at . He is classified with . He receives related services of .
He received .
has been diagnosed with .
had been placed in a while he was in . The DOE had recommended . They recommended
.
During the DOE recommended be placed in a and removed .
On June 11, 2015 an IEP meeting was held and the team recommended a program in a community school with related services. was enrolled at during the 2015-16 school year.
On February 3, 2016 an IEP meeting was held and the team recommended maintaining 's program recommendation along with .
On March 24, 2016 an IEP meeting was held because the Parent had sent a letter requesting that 's cease giving services. The program recommendation was maintained.
The parents maintains that there has been a denial of FAPE for the 2014-22015,
2015-2016, and 2016-17 school year. The Department conceded that they did not provide a FAPE for the 2014-15 school year. Parent requests various forms of relief including to have the CSE reconvene and develop a new IEP from updated evaluations. They also seek compensatory services. They request compensatory as well as ongoing , and reimbursement for the cost of .
DEPARTMENT”S CASE
The Department conceded that they did not offer a FAPE to for the 2014-
15 school year. (Tr. 53)
The Department maintains that they did offer a FAPE to for the 2015-16 school year. They claim that he made meaningful progress during the year. They argue that
.
They argue that the Parent is not entitled to any compensatory services because the DOE had provided RSAs which were not used by the Parent. They also argue that it was the Parent who requested the to be terminated. It is their position that any relief for the 2015-16 school year should be denied.
With respect to the 2016-17 school year they argue that it is too early to know how did in school. It is their position that it is premature to award any relief.
is an at , the
.
They provide from up until .
(Tr. 219) They have and . They also provide related services of . (Tr. 219) They had an available seat in a for a during the 2015-16 school year. (Tr. 220) They are located at
.
works for the Department of Education as a .
She attended the IEP meeting in June 2015 IEP for the 2015-16 school year as the and the District representative. A participated as the special education teacher, a general education teacher, the , the parent, and a parent member, also participated in the meeting. (Tr. 237) The team reviewed the educational evaluation report, the evaluation, the progress report, the progress report and a in preparation for the meeting. (Tr. 237) The team conducted all of the evaluations except for the teacher report. (Tr. 237) She conducted the evaluation and the evaluator conducted the evaluation.
They had progress reports from the provider who worked with the student.
She performed the ,
. .
.
.
.
.
presented at the time as .
. They recommended
services.
was classified with .
. (Tr. 242)
He had been given a assessment when he was years old and his at the time came out to be . (Tr 243)
They determined that needed . They recommended a . They had considered and rejected other programs.
Parent had reported that and expressed
concerns in . She reported that
. They determined that he would be able to benefit from . They addressed concerns with
. (Tr 247)
was recommended by the providers. The goals
were drafted by herself, the school and the .
They did not have a medical diagnosis to support and they continued to classify with . (Tr. 248)
They recommended a in a community school for a .
This was the least restrictive setting. He had never been in a setting. The parent agreed with the recommendation. (Tr. 250)
She opined that the program and services were appropriate for . A would provide him with . He would have which he had not had in the setting. He had and he would continue to have
. (Tr. 260)
On cross-examination she stated that they did not evaluate for . (Tr.
270) They address . They did not discuss
. (Tr 272)
She explained that there was no indication that he would benefit from .
They relied on reports from the providers. The providers were not at the meeting.
The provider had recommended
.
She explained that they did not follow the recommendation from the provider of . They recommended based on the progress report. They wanted to . He had also been receiving
.
They recommended . The provider had recommended . She explained that the DOE does not use increments of fifteen minutes. They did not keep because . They opined that he would thought benefit from this related service (Tr 283)
The team thought a was too restrictive. (Tr. 285)
On re-direct she explained that a change in 's classification would not have changed the services on the IEP. She explained that and settings are only present in .
They are for students. (Tr. 303) does not have that are impacting his progress.
On re-cross-examination she agreed that would have to have been included in an IEP with a classification of . (Tr. 316)
is an IEP teacher and a for
.
Last year she was a in a and was a student in her class during the 2015-16. There were
In February 2015 there was an IEP meeting. (Exhibit 14) She attended as the special education teacher. They recommended that would continue in his recommended placement of .
She explained that he required . She opined that this was the correct recommendation.
came to her class and . At the end of the
year
. (Tr. 324)
He began her class as and at the end of the year . She described this as a significant improvement.
at the beginning of the year and at the end of the year
. . (Tr. 325)
They use a program called which is a where
. It is part of their program.
. (Tr. 325)
. (Tr. 326) They provide report
cards several times a year. She opined that he made “some very good progress.” (Tr. 328)
. (Exhibit 27) She
explained that this is equivalent to . (Tr. 328)
She opined that made meaningful progress in .
. (Tr. 338)
She described as .
.
. (Tr. 340)
On cross examination she stated that she did not think that would benefit from an . He was responding to support that was provided,
. He mainly requires
. (Tr. 346)
She did not think that a would be a benefit to . He benefits from . She opined that from he made significant progress during that school year. (Tr. 355)
On cross examination she stated that an IEP meeting was held on February 3 because Parent had requested to be added to the IEP. Parent explained that
. (Tr
357) She advised the parent to speak with the IEP teacher. Parent was very upset at the meeting with the . The meeting was not productive and they held a second IEP meeting on February 22.
was the in 's school for the
2015-16 school year and the current school year. He had started attending in October
2015. She had received a letter from his mother requesting . She opened the case as a reevaluation and opened the assessment planning document and requested consent to do additional testing. She gave the mother the medical form and explained that it had to be filled out by a Doctor in order to see what types of accommodations were needed. Parent completed form (Exhibit 12) and an IEP meeting was held.
She attended as the District representative. There was also a special education teacher, general education teacher, , ,
, the parent and the parent member. They reviewed the previous IEP and the
.
They reviewed the previous IEP and the who sees him was present at the meeting and discussed his needs. The goal were written by his teacher and the related service goals were developed by the related service providers (Tr 398) They reviewed the that had been done the previous year. They believed that he continued to require . They believed it was appropriate for him to be in a community school where . He did not have any . (Tr 44) They discussed and rejected other settings.
The only concern raised by the Parent at the IEP meeting was that she required . The team reviewed the and agreed that would be appropriate. The Parent did not provide consent for any updated testing. (Tr. 397)
Ir was agreed that would be added and was appropriate (Tr 501)
They recommended the continuation of a in a community school with related services at their current mandate (Tr 401) The parent was in agreement and did not want to discuss his goals or other services and no changes were made. (Tr. 402) The IEP was identical to the prior IEP except that was added. (Tr. 404)
The is notified about the request. It typically takes ten to fifteen days for . (Tr. 403) They made an IEP revision to . The Parent gave consent to this change. (Tr. 405)
Parent wrote a letter (Exhibit 22) stating she would no longer wanted to receive . There was an IEP meeting held on March 20 . She attended and the of opined that continue his services. They decided that the best solution would be to issue RSAs which were issued.
was mandated to received for the 2015-16 school year. He began receiving them around February. She opined that he is receiving the appropriate services (Tr 407)
On cross examination she stated that they did not discuss make up services because the parent had been given RSA. At the February 3 meeting they had reviewed 's prior IEP and . They had input from the service providers, his parent and teacher. They discussed his progress. He was a fairly new student. His teacher had not noticed . (Tr. 412)
The letter from Parent stated that she no longer wanted him to receive from Ms. . She called the parent and explained that Ms. was the only provider in the school.
They received the letter on February 10 and arranged for a meeting on March 24. They needed to arrange for a of to be present.
On re direct she explained that everyone who works with a student is expected to implement any listed under . (Tr 435)
PARENT'S CASE
The Parent maintains that the DOE did not offer a FAPE to for the 2014-
15, 2015-16 and 2016-17 school year. They maintain the the DOE's failure to provide during the 2015-16 school year caused him to miss numerous days of school. They argue that the DOE failed to conduct updated evaluations for . (this matter has been addressed) They argue that the CSE went against the recommendation for 's . They maintain that the DOE failed to address 's diagnosis of and did not provide him or his Parent with any services.
provides
, and provides . [5]
He reviewed 's IEP from 2016, his school progress report from 2015 and his evaluation from 2016. He opined that should be provided with a follow up report. (Tr 477) He described various ways in which could help with 's challenges. He opined that was probably a good candidate for in the prior school year. (Tr 486)
On cross examination he stated that he never met . He has never spoken with any of 's teachers or providers.
works for the DOE at an . Prior
to that she had worked at as a that evaluated and treated people with .[6]
She supervised Ms. who created a report on February 15, for . The report was sent to her for review. Informal assessments were used for the report. The report indicated . The report recommended . She opined that were warranted.
She opined that were most appropriate because of and .
had been deemed most appropriate because of and
.
On cross examination she reiterated that she did not write the report. She did not assess and was not present during the assessment. She never met .
MS. is 's mother. He was diagnosed with in 2014 by Dr. . (Exhibit BB) She advised the school of the diagnoses.
since 2014 and .
. (Tr 515)
She would be interested in . (Tr. 516)
She attended the June 11, 2015 IEP. They had discussed 's continued need for . It had been on his last IEP and it was discussed that it would be added to the IEP.
She was shocked when she found out the IEP did not include . (Tr. 517)
She described during the meeting. There was no discussion about . She may have mentioned it. (Tr. 518)
She discussed the possibility of at the meeting. This was not specific to the IEP recommendations. She stated that “ ” Nothing was said at the meeting that triggered the request. (Tr. 519)
She was not told at the meeting where would be placed at school. She received paperwork telling her that would be going to .
. (Tr. 520-522)
She contacted and they had an opening in October.
. .
. He started receiving
at the end of February.
.
. (Exhibit UU)
As soon as she registered in school in October she requested
. She called them after three weeks and was told that he did not fit the criteria for . She was told that she had to write a letter which she did. She waited again and they stated that she never sent a letter. She sent a second letter in January. (Tr. 532)
She received a call in December stating that was not getting
. She
requested an RSA. She thought that she “probably” received an RSA after the break. She was told what it was but not told what to do with it. (Tr. 537)
She attended an IEP meeting on February 3, 2016. The team suggested that his . She did not agree. (Tr. 538)
She brought up and one of the teachers stated that she noticed it as well. Nothing else was discussed. (Tr. 539)
She received an IEP after the meeting. (Exhibit H)
When asked about receiving consent forms for evaluation in January she stated that she did not know what it was for and could not get a clear answer. (Tr 542)
She was not invited to the IEP meeting that took place on February 22, 2016.
She wrote a letter for the purpose of having someone else to service for . She did not want him to stop receiving services. (Tr. 543)
She attended the March 24, 2016 IEP meeting by phone. They asked if they could remove and explained that if they had someone in the building they could not give her an RSA. They did agree to give her an RSA. They explained to her that she would be given a list with available providers. She attempted to call providers but was unable to find one that was available. (Tr. 546)
On cross examination she acknowledged that had been placed at , his zoned school, which is right across the street from where they live. She acknowledged that .
In response to being asked if the reason every time for was because she could not get him to school, she replied “ ” (Tr. 552
She probably received an RSA for in December which she probably did not attempt to implement. .(Tr 559 ) Her priority was getting to school. She was unable to find a provider for .
is the at and she is a and a New York State licensed . Among other things she does is . Her rate is . (Tr. 576)
She conducted a record review of in July 2016. She wanted to to understand in order to help with intervention.
Based on her assessment, presents with
. It also indicated that
. He also .
. (Exhibit YY)
. (Tr. 539)
As part of the evaluation she conducted an which looks at . It
is a
.(Exhibit YY)
Based on performance
. The scores from the were consistent with her evaluation.
She used the which is the
. (Tr. 581)
The test indicated that
. (Tr 581)
Primarily had
. He had
. He had
.
. He demonstrated .
. She explained that it could be the result of or . She opined that he would be a candidate for a . She did not know what type of had been provided.
There are techniques and strategies used specifically in order to .
(Tr 585)
needs .
. She
opined that he would be a candidate for an . (Tr. 586)
. (Tr. 587)
She described as . She uses
as part of her evaluation and he responded well.
(Tr. 590)
She opined that presents as a good candidate for . He is a student that requires and he requires
.
.
She recommended that he receive
going forward and
. She recommended . (Tr. 591) She
based this recommendation on that need to be addressed in order to assess
. would address , including . (Tr 592) She recommended that attend a school that . She recommended an .
FINDINGS OF FACT AND CONCLUSIONS OF LAW
It is well-established that a district may be required to pay for private educational services for a student with a disability, if the services offered by the DOE are inadequate or inappropriate, the nonpublic school is appropriate to meet the student’s unique educational needs, and there is no equitable bar to recovery. Sch. Comm. of the Town of Burlington v. Dept of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v.
Carter, 114 S. Ct. 361 (1993); 20 U.S.C. § 1415(e)(2).
One of the main purposes of the Individuals with Disabilities Education Act (
IDEA) (20 U.S.C. §§1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401 [9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.
A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.
(Application of a Child with a Disability, Appeal 18No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).
Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.
A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).
The CSE has an obligation to involve petitioner meaningfully in the IEP development process. Application of the Bd. Of Educ., Appeal No. 02-036: Application of a Child with a Disability, Appeal No. 98-26, and many not seriously infringe on the parent's participation in the creation or formulation of the IEP. See,e.g., Pascarella, 153 F.
Supp.2d at 153; Brie, 948 F. Supp. At 1255; Application of a Child with a Disability, Appeal No. 02-015.
A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally, from that instruction.” (Rowley 458 U.S> at 203)
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wenger v. Canastota, 979 F. Supp. 1547 [N.D.N.Y. 1997])
In June 2015, the team met to develop an IEP for for the 2015-16 school year. There was testimony about the evaluations and reports that were reviewed. There was testimony about the various goals. There was testimony about consideration given to other programs.
Parent argues that they did not consider a . There was testimony that a could only occur in a and that did not meet the criteria for such a restrictive setting. The fact that the Department did not ultimately recommend a does not mean it was not given consideration.
had been in a setting during the prior year. I find that a in the recommended setting was the least restrictive setting.
Parent points to evidence in the record that in order to establish the lack of meaningful progress. It is undisputed that had been denied a FAPE for the prior year. There was testimony from his teacher during the 2015-16 school year that he did make progress, in spite of . I find that the recommended program for the 2015-16 school year was reasonably calculated for him to make progress.
On February 3, 2016 an IEP meeting was held and the outcome of the meeting was to . The record establishes that Parent had made several requests for and that the Department failed to implement this request and need in a timely manner which contributed to . Department argues that need not be provided because of a parent's difficulty but should be based on the student's need. There was evidence from 's that he required . (MM) Parent testified that did not receive until sometime in February or March. I find that the Department failed to properly implement the IEP.
It is undisputed that had not been provided with sessions and that the Parent was not even advised until after the fact during a phone conversation. I find this is another example of the Department failing to implement the
IEP.
was not provided with all of his . I find that the parent's letter for termination of services was for the specific provider. I find that the Department waited too long to arrange for an IEP meeting to address this issue.
It is undisputed that the Parent was not invited to one of the IEP meetings. This in and of itself goes against one of the basic requirements of any IEP meeting.
The Department reduced the amount of recommended related services. They also reduced the type of sessions that would receive. The Department is not required to invite the providers to the meeting, however, I find that there should have been some discussion with the provider about the possible impact of as opposed to . I find the fact that the Department did not follow a recommendation is not in and of itself a denial of FAPE.
It is undisputed that at the February 3, 2016 meeting members of the team were already aware of 's diagnosis. Parent had described . I find that the team should have given more weight to this diagnosis and should have addressed . I find that they needed to discuss
.
It is undisputed that needed updated evaluations. The Department agreed and did provide these evaluations at the beginning of the proceedings. I find that the team did not have necessary evaluations for the 2016-17 school year.
I find that failure to implement the 2015-16 IEP, the failure to have updated evaluations, the failure to have the parent attend one of the IEP meetings, and the failure to consider his diagnosis of , resulted in a failure to provide a FAPE to .
I find that the Department failed to offer a FAPE for the 2014-15 school year.
I find that the Department failed to offer a FAPE for the 2015-16 school year.
I find that the Department failed to offer a FAPE of the 2016-17 school year.
RELIEF REQUESTED 8
In this case there are several factors that effect the amount of compensatory education that is awarded. There is no doubt that 's mother is a loving and concerned parent, however, I find that her actions or lack of action contributed to his progress or lack of progress during the 2015-16 school year.
. This was a decision that she made when admittedly
. Once she secured placement for at , . There is no
8 Any relief not requested in closing is deemed abandoned question that the DOE did not timely respond to the request for and dealt with her request in a very poor manner. However, I find that this does not excuse . I credit Parent that , however, even when questioned by her attorney, and on cross examination, she was unable to say that this was the only reason for . Even after received , there were . (Exhibit 28) I find that the Parent's actions warrant a reduction in the amount of compensatory services for the 2015-16 school year.
With respect to compensatory services for the 2016-17 school year, there was no evidence presented as to any missed sessions of related services. There is no evidence of whether or not is progressing under his current program. I note that reference is made to Ms. , his current teacher, in a report, about . There was no testimony or any first hand evidence from her about any progress he has or has not made during the year. Although progress is not necessary to determine if there is a FAPE, I agree with the Department that it is premature to determine if he entitled to any compensatory services.
I find that is entitled to compensatory services for the 2014-15 school year.
The Department conceded that they did not offer a FAPE to . He was in a setting and I find that he did not receive appropriate individualized instruction.
I find that is entitled to compensatory services for the 2015-16 school year, for related services that were missed, and for the lack of which contributed to .
With respect to the request for compensatory , the Department argues that Parent was provided with an RSA for on October 30, 2015 (Exhibit 3) which they did not use and in addition Parent did not provide the name of a provider. Parent testified about the confusion over how to use the RSA. Not only did the Department fail to provide with his mandated services but the Parent was not informed until after sessions had already been missed. I find that is entitled to makeup services. This, however, does not mean that the Parent may choose their own provider, without initially using an RSA.
With respect to the request for compensatory , the Department argues that it was the Parent who had requested the termination of the services. I credit the Parent's testimony and the evidence that her intention was never to end the services.
She was unhappy with the particular provider.
I find that is entitled to make up missed services. This, however, does not mean that the Parent may choose their own provider, without initially trying to use the RSA.
I find that is entitled to compensatory education services and that provider who conducted the assessment is entitled to be reimbursed at her normal and customary rate for the evaluation.
Parent requests “going forward” . The team will be reconvening to make a new IEP using all of the updated evaluations that have been awarded. It is unknown what type of setting will be in, what teaching method will be used in class, and what supports he will be receiving. It will be the team's responsibility to come up with an appropriate program. I find no grounds to make any award of .
Parent requests reimbursement for travel expenses incurred by mother as a result of Department's failure to provide . I find that she is entitled to reimbursement.
Parent makes a request for an evaluation. Parent had specifically requested an interim order for evaluations. They did not want to wait until the end of the hearing so that the team could meet and develop an IEP. All the evaluations that had been requested were either conducted by the Department willingly or by the interim order. The Department conducted an report in September 2016. (Exhibit JJJ) Dr. , who never met and did not speak with his teachers, testified on behalf of the Parent in favor of an additional evaluation. As Parent had pointed out at the beginning of the proceedings we do not want to delay the IEP meeting because of evaluations. The fact that the evaluation does not recommend is no reason in and of itself to have another evaluation. I find no grounds to order another evaluation at this time.
Parent requests a new IEP meeting with very specific things that should be included. Parent requests . This is one of the issues that had in the past been addressed at an IEP meeting and will undoubtedly be addressed in the next meeting. Evidence does not establish that a is necessarily appropriate as the least restrictive setting. Parent specifically requests to be put on the IEP. While I find grounds to award compensatory services in the form of I find no grounds to dictate what methodology should be used going forward. The DOE is not required to use a specific methodology. All of the other specifics named in the requested relief are either things that are in every IEP, such as present levels of performance, appropriate related services and I find no need to specifically order these items. With respect to the other requests such as and and specific services to address certain issues, these are things that I will ask the IEP team to consider. They will be in a better position to know if they are warranted after reviewing all the updated records.
Parent requests that Department provide all current and future IEPs, communication, evaluations, reports and correspond o the Parent by means of mail and copies in advance of documents to be used at IEP meeting. I find this too be an overly broad request. In evidence there are already current IEPs. I find no grounds to make any order involving “all future” IEPs or “all communications”. The Department is required to send the Parent of a copy of the IEP that is generated as a result of this order and should send copies of documents that are being used in advance.
ORDER
The DOE shall provide as compensation for the lack of FAPE for 2014-2015 and 2015-2016 school years not to exceed a rate of per hour.
Any request for on going is denied.
The DOE shall directly pay for the that was done by Ms.
upon evidence of invoice and test.
The DOE shall reimburse the Parent for upon receipts for such not to exceed
$
The DOE shall provide the Parent with RSA for that were missed not to exceed of compensatory and of compensatory . Parent shall provide a list of missed sessions. Department shall help the parent in the use of the RSAs. If Parent is unable to find providers that are available and willing to work outside of the school day, upon providing a list of efforts made to the DOE, the DOE shall fund an independent provider at their customary rate.
The request for an independent evaluation is denied.
The DOE shall provide the Parent with 's current IEP and IEP that is generated as a result of the next meeting. They shall provide Parent with copies of documents being used at the IEP meeting in advance.
The DOE shall reconvene in order to develop an IEP for within two weeks of this order. The team shall include in the IEP all the standard provisions including appropriate levels of performance, appropriate accommodations and meaningful goals.
The team shall give consideration to a based on any updated information and shall consider any 's need for a . The team shall give strong consideration to providing . The team shall consider a . The team shall give strong consideration to 's diagnosis of
.
Dated: March 13, 2017
SHARYN FINKELSTEIN, ESQ.
Impartial Hearing Officer SF:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
A Impartial Hearing request May 24, 2016 17 pages
B IEP June 1, 2012 14 pages
C IEP September 28, 2015 15 pages
D IEP Program March 18, 2016 10 pages
E IEP June 11, 2015 21 pages
F Out
G Out
9 H IEP Parent copy February 3, 2016 4 pages
I IEP Program Parent Copy Undated 9 pages
J-Q out
R annual progress report
by May 17, 2013 3 pages
S Report December 9, 2013 1 page
T February 27, 2014 1 page
U by September 25, 2014 3 pages
V , May 29, 2014 1 page
W by November 25, 2014 1 page
X Progress Report by
February 4, 2015 [9]
Y Out
Z by
March 11, 2015 13 pages
AA Out
BB Letter from January 1, 2015 1 page
CC Prior written notice June 17, 2015 2 pages
DD Letter from January 1, 2015 1 page
EE Parent's IEP reconvened requestJanuary 13, 2016 2 pages
FF Letter regarding evaluation from
DOE to Parent January 14, 2016 1 page
GG-LL Out
MM Request for September 24, 2014 1 page
NN Consent for evaluation November 21, 2014 1 page
OO Out
PP by
January 14, 2016 3 pages
QQ Out
RR Parent Impartial hearing request February 8, 2016 3 pages
SS Parent Impartial Hearing Request February 26, 2016 2 pages
TT March 4, 2016 3 pages
UU July 1, 2016 4 pages
VV Assessment planning Undated 1 page
WW Assessment planning Undated 1 page
XX Resume of Undated 1 page
YY report by
August 2, 2016 10 pages
ZZ NYC DOE list of Approved 1 page
AAA Affidavit from
with resume August 11, 2016 6 pages
BBB Parent's Motion for IEE August 12, 2016 2 pages
CCC Assessment Authorization 2 Form
Student Parent/Guardian and
Independent Evaluator Form Undated 3 pages
DDD NYCDOE Standard Operating Procedures
Manual Assessment Authorization -5
Form: Rate Schedule for independent
evaluators Undated 1 page
EEE NYCDE Standard Operating Procedure
Manual Assessment Authorization -9 Form
Disapproval of Assessment Report undated 1 page
FFF Brief in support of IEE September 1, 2016 7 pages
GGG DOE August 10, 2016 10 pages
HHH DOE August 10, 2016 5 pages
III DOE
August 12, 2016 6 pages
JJJ DOE
September 19, 2016 11 pages
KKK Resume of unidentified date 2 pages
LLL Resume of
unidentified date 5 pages
MMM Related service session rates undated 5 pages
NNN by
November 8, 2016 12 pages
OOO
by November 10, 2016 3 pages
PPP Resume of unidentified date 3 pages
QQQ Letter from November 28, 2016 1 page
RRR Motion for independent evaluations unspecified date 5 pages
SSS Affidavit of unspecified date unspecified
TTT Closing Brief February 23, 2017 30 pages
DEPARTMENT
1 Out
2 Out
3 RSA October 30, 2016 3 pages
4 Enrollment report March 4, 2016 1 page
5 March 19, 2015 4 pages
6 Progress Report June 18, 2015 2 pages
7 CSE meeting notice June 11, 2015 2 pages11
8 IEP June 11, 2106 29 pages
9 Prior written notice June 17, 2016 4 pages
10 School Location letter June 19, 2106 2 pages
11 Request for January 13, 2016 2 pages
12 January 18, 2106 2 pages
13 Meeting Notice January 26, 2016 3 pages
14 IEP February 3, 2016 17 pages
15 Prior Written notice February 12, 2016 4 pages
16 Committee on Special Education
meeting note February 22, 2015 3 pages
17 IEP February 22, 2016 20 pages
18 Prior Written notice February 23, 2016 4 pages
19 Previous February 17, 2106 1 page
20 Current April 6, 2016 1 page
21 February 3, 2016-June23, 2016 34 pages
22 Request from parent to remove
February 10, 2016 1 page
23 Meeting notice of Committee on
Special Education March 14, 2016 3 pages
24 IEP March 24, 2016 19 pages
25 Prior written notice March 3, 2016 4 pages
26 RSA March 3, 2016 3 pages
27 2015-2016 report card June 27, 2016 2 pages
28 from 2015-16July 27, 2016 1 page
29 October 15, 2015July 23, 2016 64 pages
30 various 51 Pages
31 February 13, 2016 4 pages
32 March 11, 2015 7 pages
11 ID only
33 out
34 1 page
35 Closing February 23, 2015 13 pages
IHO
I Interim order September 20, 2016 9 pages
II Extensions Various 8 pages
Footnotes
[2] At the first hearing Parent appeared pro se and requested time to hire an attorney. The hearing was adjourned for her to obtain counsel.
[3] Ms. appeared for the Department on August 14, 2016
[4] Parent had sent an email requesting that I not accept Department's brief because it was sent a couple of hours after deadline. I find no harm to the Parent by this “delay” and I deny the request.
[5] resume was submitted into evidence and he was accepted as expert witness (KKK, Tr. 475
[6] 's resume was submitted into evidence and she was accepted as an expert witness. (Exhibit PPP, Tr. 501)
[7] Accepted as an expert witness Tr 576
[9] Identification
[10] Identification